Ancient Tales of a Kingdom not Unlike One You Know

Month: March 2016

“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

“Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society – (a) for the purpose of preventing the disclosure, of information received in confidence; maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematographic films; …”

This is the summary of the provisions of the Nigerian constitution on the right to freedom of expression. The section has become relevant in the light of a draft bill being circulated, seeking to establish a Motion Picture Council of Nigeria (MOPICON). The name seems innocuous enough, but when a look is taken at what the Bill seeks to empower Mopicon to do (see the MOPICON Draft Billor read a review of the Bill here), then it is time to be a little concerned.

As is typical with most Bills in our country, there is no White Paper – no summary of the challenges or mischief facing the motion picture industry. There have been a couple of interventions as to why the Council is needed (see here and here), but these only appear to vaguely refer to the “challenges” facing the industry and the fact that some guilds gained traction and others didn’t. At a first glance therefore, it may be that the production of the Bill was driven by a need for validation in a certain faction of the industry old-timers. A review of the law itself doesn’t help either in identifying what mischief the law seeks to cure, or the problems it is trying to address.

The Bill seeks to establish the Council for the purpose of charging it with duties that include, amongst others:

“(a) determining who are Motion Picture Practitioners;

(b) determining what standards of knowledge and skills are to be attained by persons seeking to become registered Motion Picture Practitioners and reviewing those standards from time to time;

(e) regulating and controlling professional practice in the motion picture industry…”

It may perhaps then be that the industry has been contending with fake practitioners, lacking in knowledge and skills and functioning without professional regulation and control. These charlatans were probably duping unsuspecting members of the public into hiring them and causing the economy to lose billions of dollars monthly. Who knows?

The Bill proceeds to segment the industry into Guilds and Associations. Writers, directors, actors, cinematographers, editors, creative designers and sound and lighting technicians will each have their own guild, while distributors/marketers and producers will belong to associations. Each of these guilds must seek accreditation from the Council.

The drafters of the Bill appear to have some doubt over which ministry is supposed to supervise the Council. This is very likely to be connected to the dispute between the Ministry of Information and the Ministry of Communication which arises from time to time, over issues where their jurisdictions ostensibly overlap. As such, the Bill frequently refers to a “Minister in charge of motion picture”.

The Bill then creates tiers of membership with the Council – associate members, full members and fellow members. Associate members need to be enrolled in training programmes (of not less than 3 years) with full members who have at least 10 years of experience, and who are recognised and accredited by the Council. Full members need to undergo at least a year’s professional training as approved by the Council, or have acquired “skill and expertise in Motion Picture Practice for a period not less than 3 years.” Fellows get so appointed by the “Privileges and Ethics Committee” of the Council subject to the criteria that said committee will lay out. However, a minimum consideration appears to be that the candidate for fellowship must show that “in the fifteen year immediately preceding the date of his/her consideration, [he/she] has been in continuous active practice as a motion picture practitioner.” What is active continuous practice? If I go away for research/participant observation for my next project for, say, 18 months, have I broken my period of continuous active practice?

The Bill says you can’t be a member unless you’re 18 years old, so it’s unclear what this portends for child actors (or other teenage apprentices), given the sanctions for being involved in motion picture practice, which we shall get to in a minute. Foreign actors/practitioners too are excluded unless their home country has a reciprocal arrangement recognising and permitting Nigerian actors/practitioners.

The Bill then gets even more interesting.

You’re not entitled to practice as a motion picture practitioner unless you’re a member of a recognised Guild or Association. You’re not allowed to stay in your lane, never mind that the constitution grants you the freedom to belong to or leave associations.

It goes further to say that you cannot take anyone to court to recover your fees unless you’re either a member or a fellow of the Council, in respect of any work you’ve done as a motion picture practitioner. This means that if you take your debtor to court, it will be a defence for him to say you’re not entitled to the fee since you’re not a member or fellow of the Council.

Additionally, if you’re not registered as a member with the Council, you are prohibited from producing or making projects for either the Cinema or Home Video Market.

Breaching any of these provisions could make you liable to a fine of N100,000 or to imprisonment for a term of 2 years.

Also interesting is that MOPICON will furnish the Nigerian Film and Video Censors Board with the list of practitioners to be licensed under the NFVCB Act.

Oh, and if criminal proceedings are brought against you under this law, as they pertain to acts that are offences if done by unregistered persons, the law says there is a presumption that you are unregistered unless you can show otherwise. Changing burden of proof in criminal proceedings. Interesting.

What does the MOPICON Bill really set out to achieve? I see nothing more than the establishment of an oligarchy within an industry that has thrived in spite of the government’s oil-centred tunnel-vision. A select group of people (most likely the promoters and their affiliates will determine who is a member of the industry and who isn’t, who can be a “motion picture industry practitioner” and who can’t. The question is, why?

Is the industry suffering due to a lack of accreditation of individuals and guild membership? That’s not the impression I get. Rather, because the industry has operated under free market principles so far, those who have distinguished themselves are establishing reputations, are able to attract the funding required to execute bigger projects. Certain producers, directors and editors are beginning to be known as the go-to guys because their quality is speaking.

MOPICON will effectively become a licensing authority for the creative industry. License to be an actor, license to be a script-writer, license to direct how scripts are interpreted onto film, license to hold a boom mic and work the sounds and lighting, license to collect one’s fees for one’s work. To me, this is absurd and the omnibus, ubiquitous Nigerianism of wanting to “sanitise” the industry cannot hold. In more developed “motion picture industry” jurisdictions, there is no such regulation. There are censors, as there are in Nigeria, but these operate to classify movies as appropriate or otherwise for different audiences. Some might point to bodies like the Screen Actors Guild but those guys (and a few contemporaries) started out as trade unions to negotiate fairer working conditions for actors. They were not and are not a professional licensing authority. Like these “saner climes”, we also have regulations from the Film and Video Censors Board, as well as a Broadcasting Code from the Nigerian Broadcasting Commission. What tangible benefit is MOPICON going to add?

Creativity should not be subject to a license from anyone. Imagine if we couldn’t write novels or blog, stage plays, paint pictures, make music, make sculptures, take pictures unless a small group of tsars said it was okay. This is exactly the same thing. Creative people are judged by how much the public enjoys or rates their work. Quality will shine and be rewarded in due course. The same is true of the converse. I personally hope the MOPICON Bill doesn’t pass.

A quick search through the constitution, or even a detailed one, will show you that the word “oversight” does not occur even once. What then is this concept of legislative oversight and how wide is the power, if it indeed exists?

A key tenet of democracies is the principle of the separation of powers. The powers, broadly, are executive powers, judicial powers and legislative powers. In the golden age of philosophy, it was the consensus that vesting all powers in one person or one organ would lead to anarchy and abuse, and that it was best to separate them so that they would each be a check on each other. This is the root of the well-worn phrase in Nigerian politics, “checks and balances”.

The powers of the legislature to check and balance the executive arm and its organs are in sections 88 and 89 of the constitution.

Section 88 says each House of the National assembly has the power to investigate (a) any matter in respect of which it has the power to make laws; and (b) the conduct of any parastatal or official responsible for administering any Act of the National Assembly or in charge of disbursing funds. The section then says that this power to investigate is only exercisable for the purpose of enabling it (i.e. the Senate or the Reps) to (a) make laws on any matter within its legislative competence and correct defects in existing laws; and (b) expose corruption, inefficiency or wastein the execution or administration of laws.

Section 89 says, as it relates to their power to investigate, they also have the power to procure evidence, require the evidence to be given on oath, summon anyone to give evidence or produce documents, and issue a warrant to compel the attendance of any such witness.

This is the entirety of the so-called oversight power. The power to investigate and the power to call for evidence and witnesses. Investigations are for the purpose of exposing waste and corruption, or for directions on amending existing laws.

The closest that the Senate has to a judicial power is the power to issue a warrant or summons to compel the attendance of a person who was previously invited but failed to turn up.

As such, every time that the Senate has “ordered” a reversal of a tariff hike, purported to revoke a contract in which the Federal Government is a party or reversed a new process (e.g. driver licensing), effectively issuing an injunction, it has acted in excess of the powers that the constitution grants it.

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